Citation Nr: 21031591
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 12-29 667
DATE: May 24, 2021

ORDER

Entitlement to an increased rating in excess of 10 percent prior to January 9, 2019 for instability associated with anterior cruciate ligament reconstruction with degenerative joint disease is denied.

Entitlement to a separate 10 percent rating is granted prior to January 9, 2019 for pain with limitation of motion due to anterior cruciate ligament reconstruction with degenerative joint disease is granted.

Entitlement to an increased rating in excess of 30 percent from March 1, 2020 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease) is denied.

FINDINGS OF FACT

1. The Veteran had no more than "slight" instability from his anterior cruciate ligament reconstruction with degenerative joint disease throughout the appeal period prior to January 9, 2019.

2. The Veteran has had degenerative arthritis and pain in his right knee throughout the appeal period prior to January 9, 2019, and his flexion was limited at its most severe, to 100 degrees, and the right knee extension was limited at its most severe, to 10 degrees.

3. From March 1, 2020 the Veteran's total knee replacement, right knee, was not manifested by intermediate degrees of residual weakness, pain, or limitation of motion, or by chronic residuals consisting of severe painful motion or weakness in the affected extremity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased rating in excess of 10 percent for instability prior to January 9, 2019 for anterior cruciate ligament reconstruction with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

2. The criteria for entitlement to a separate 10 percent rating prior to January 9, 2019, for pain and limitation of motion from anterior cruciate ligament reconstruction with degenerative joint disease are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010.

3. The criteria for entitlement to an increased rating in excess of 30 percent from March 1, 2020 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from July 1964 to May 1968, and from January 1973 to February 1996.

This appeal is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In his October 2012 VA Form 9, the Veteran requested a hearing before the Board at the RO. While hearings were scheduled for March and April 2016, the Veteran failed to report for either proceeding. Moreover, in June 2020, the Veteran indicated that he did not want a Board hearing. Hence, the Veteran is deemed to have withdrawn his hearing request. See 38 C.F.R. § 20.702(d). In June 2016, the Board remanded the issues on appeal for additional development.

In November 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998).

In the June 2019 rating decision, the Agency of Original Jurisdiction awarded a temporary total rating from January 9, 2019 to March 1, 2020, and then assigned a 30 percent rating thereafter.  As a temporary total rating has been assigned from January 9, 2019 to March 1, 2020, this period is not on appeal and the issue is characterized as set forth above. Moreover, the Veteran has not obtained the maximum rating possible for his right knee disability both before June 9, 2019 and after March 1, 2020. As the Veteran is presumed to seek the maximum available benefit for a disability, this claim during these periods is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993)

Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361   (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

1. Entitlement to an increased rating in excess of 10 percent prior to January 9, 2019 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease)

2. Entitlement to an increased rating in excess of 30 percent from March 1, 2020 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease)

The Veteran seeks a higher rating for his status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease), evaluated as 10 percent disabling prior to January 9, 2019, and 30 percent disabling from March 1, 2020. 

The applicable rating period is from May 25, 2009, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year "look-back" period for non-initial increased rating claims).

The Veteran was originally awarded service connection for his right knee following a right anterior cruciate ligament reconstruction for anterior cruciate ligament and was awarded a 10 percent rating under diagnostic code 5257 (Impairment from recurrent subluxation or instability). In the May 2004 rating decision, the Veteran maintained a 10 percent rating with the diagnostic code unchanged. In the May 2010 rating decision, the Veteran maintained his 10 percent rating, but the diagnostic code was changed to 5257-5261. DC 5261 rates based on limitation of extension.  In the June 2019 rating decision, the AOJ awarded a temporary total rating from January 9, 2019 to March 1, 2020, and then assigned a 30 percent rating thereafter under Diagnostic Code 5055 post right total knee arthoplasty (TKA).

The record reflects that the Veteran underwent right total knee replacement on June 26, 2007, and right total knee replacement surgery on January 9, 2019. The Veteran's service-connected right knee disability was rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 5261, prior to the dates of the total knee replacement surgeries and under 38 C.F.R. § 4.71a, Diagnostic Code 5055 after those surgeries.

Legal Criteria

38 C.F.R. § 4.71a, Diagnostic Code 5010, directs that traumatic arthritis be rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, rating shall be on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is slight; a 20 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is moderate; and a 30 percent ratings is warranted for recurrent subluxation or lateral instability of the knee that is severe.

Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257. As such, objective medical evidence cannot be found categorically more probative than lay evidence with respect to Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Under DC 5257 (as of February 7, 2021, under the amended regulatory criteria) instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 

For (1), recurrent subluxation or instability due to sprains or ligament tears causing peristent instability, a 10 percent rating is warranted when there is no prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. Id. 

For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Note (1) defines patellofemoral complex for Code 5257 as consisting of the quadriceps tendon, the patella, and the patellar tendon. Note (2) clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. Id. 

For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace cane or walker. A 20 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following a brace, cane or walker. A 30 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, and either a cane or walker. Id.

Under 38 C.F.R. § 4.71a , Diagnostic Code 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees.

Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II.

Separate ratings may be awarded under Diagnostic Codes 5260, and 5261. See VAOPGCPREC 9-2004. In addition, even if a veteran did not have limitation of motion of the knee meeting the criteria for a compensable rating under Diagnostic Code 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

In addition, the VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5010 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5010. See 38 C.F.R. § 4.59.

Under Diagnostic Code 5055 (prior to the regulatory change on February 7, 2021), a 100 percent rating is provided for one year following implantation of prosthesis. After one year, a minimum 30 percent rating is provided. A maximum 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, intermediate degrees of residual weakness, pain, or limitation of motion may be rated by analogy to Diagnostic Codes 5256, 5261, or 5262.

Terms such as "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

Under Diagnostic Code 5055 (as of February 7, 2021, under the amended regulatory criteria), a 100 percent rating is provided for four months following implantation of prosthesis. After four months, a minimum 30 percent evaluation, for "total replacements only" is provided. A maximum 60 percent is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. In addition, intermediate degrees of residual weakness, pain, or limitation of motion may be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Note: At the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing.

Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All of these potentially applicable Codes have been considered.

Summary of the Evidence Relevant to the Increased Right Knee Ratings Claim

Turning to the evidence, during a December 2009 orthopedic consult, the Veteran reported that his knee is giving way about once a month. He reported multiple instances of instability. The Veteran stated that his knee is worse with the changes in the weather, but the pain is starting to affect his daily activities. The Veteran states that there are "possible episodes of catching or locking, though he complains mostly of instability. Uses cane for a few days after episode of instability."

In March 2010, the Veteran underwent a VA examination for his right knee condition. The examiner noted that in the 1990's the Veteran was diagnosed with an ACL tear, that was surgically repaired. The March 2010 examiner provided a diagnosis for degenerative joint disease for the right knee, status post anterior cruciate ligament reconstruction right knee, with residual scar. The Veteran reported constant aching pain in the anterior right knee. The Veteran reported that the flare-ups increased the achiness in his knee as the weather changed; increased stiffness; and created some limitations on walking on exercise. The Veteran reported using a cane for 1-2 weeks after a flare. The examiner noted that the Veteran's limitation of motion of the right knee is limited to 140 degrees flexion and 0 degrees extension. The x-rays revealed no acute osseous abnormality. Probable medial compartment articular loss. The examiner noted there was no pain during range of motion testing and no additional limitation following repetitive range of motion. The examiner noted no subluxation or instability of the knee.

In January 2015, the Veteran had an x-ray of his right knee that revealed, "Calcifications in the infrapatellar no meniscal calcifications ligament. Small spur and the margin of the patella. Cystic formations in the patella anteriorly. Minimal degenerative change."

In a July 2016 correspondence, the Veteran stated that his knee swells periodically at the end of the day, is unstable on stairs, and is painful whether walking or resting.

In August 2016, the Veteran had an x-ray of his right knee that revealed, "No significant change in mild narrowing of the medial lateral compartments the tibiofemoral joint space. Patellofemoral joint spaces maintained. Osseous matrix is stable."

In January 2017, the Veteran was afforded a VA examination for his right knee condition. The examiner noted that the Veteran was diagnosed with a right knee anterior cruciate ligament tear. The Veteran reported that his right knee periodically "goes out" on him and that he has difficulty going down the stairs. The Veteran stated that he is in constant pain, most days rate as 3-4, but the pain goes up to 8-9 every 4-8 weeks. The Veteran's pain is made worse with standing, leaning, prolonged walking, carrying groceries, and walking up and down stairs. The Veteran reported having flare-ups every 6-8 weeks that causes his right knee to feel unstable and not able to support him. The Veteran states that his functional loss includes not being able to stand longer than 20 minutes or walk longer than 15. 

The examiner noted that the Veteran's limitation of motion of the right knee is limited to 105 degrees flexion and 10 degrees extension. The examiner noted that there is no evidence of pain with weight-bearing; localized tenderness or pain on palpitation of the joint or associated soft tissue; or crepitus. The examiner noted there was no pain during range of motion testing and no additional limitation following repetitive range of motion. The examiner stated that there is evidence of pain on passive range of testing, and non-weightbearing. The examiner stated that the Veteran was not examined after repetitive use over a period of time or during flare-ups, and thus is unable to say without speculation if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, or flare-ups. 

The examiner stated that the Veteran has less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, interference with standing. The Veteran's muscle strength was 5/5 in his right knee, had no muscle atrophy, no ankylosis, no recurrent subluxation, and no lateral instability. The examiner stated that the Veteran reported that his right knee swells 2-3 times a year and has a history of recurrent effusion. The examiner noted that the Veteran's imaging studies revealed that the Veteran has degenerative or traumatic arthritis in his right knee. 

In February 2019 the Veteran underwent a VA examination for his knee condition. The examiner noted that the Veteran had a diagnosis of "s/p ACL and TKA with residuals to include DJD and scar," for the right knee. The Veteran reported having surgery in January 2019, and that he has significant post/operative pain but that his surgeon feels he is progressing where he should be status-post surgery. The Veteran reported that he had no flare-ups. The Veteran reported that he is limited with kneeling and squatting. 

The examiner noted that the Veteran's limitation of motion of the right knee is limited to 115 degrees flexion and 5 degrees extension. The Veteran has functional loss for flexion and extension. There is evidence of pain on weight bearing and localized tenderness or pain on palpitation of the joint or associated soft tissue. Specifically, there is tenderness along the surgical scar and both medial and lateral sides of the joint. The examiner noted there was no pain during range of motion testing and no additional limitation following repetitive range of motion. The examiner noted that there is no pain, weakness, fatigability or incoordination that significantly limits functional ability with repeated use over a period of time. The examiner noted that there was no muscle atrophy, evidence of crepitus, and no ankylosis. There is no history of recurrent subluxation or lateral instability or recurrent effusion. The examiner stated that there was no joint stability performed because of the status post recent TKA and thus could not be performed.

The examiner explained that it was too soon after the surgery to determine the Veteran's status (residuals), and the Veteran has not been cleared by his surgeon. The examiner stated that the Veteran has DJD residuals from the ACL reconstruction. The Veteran currently uses a walker constantly as an assistive device. The functional impact includes being limited with longer standing, walking, or repetitive kneeling, squatting, stairs or running. The examiner stated that there is evidence of pain on passive range of motion testing and non-weight bearing. Finally, the examiner noted that the current knee exam is limited due to post-operative residuals. 

In November 2019 the Veteran was afforded a VA examination for his right knee condition. The examiner stated that the Veteran was diagnosed with; right knee anterior cruciate ligament tear; knee joint osteoarthritis; and right residuals of right total knee arthoplasty (TKA). The Veteran reported that his right knee is better than before surgery, as his range of motion has improved, and he has decreased pain. He reported that his knee clicks with walking, aches all the time and has difficulty with stairs, especially going down them. He reported that when he does leg presses his right knee gets swollen on both sides. The Veteran reported that he does not have any flare-ups. As to functional loss, the Veteran reported having difficulty with stairs, and his legs feel tight when he wakes up. He cannot run anymore and has discomfort after 10 minutes on the treadmill. He also has trouble kneeling. 

The examiner noted that the Veteran's right knee has normal range of motion. The examiner noted there was no pain during range of motion testing and no additional limitation following repetitive range of motion. The examiner stated that there is no evidence of pain, weakness, fatigability or incoordination that significantly limits the Veteran's functional ability with repeated use over a period of time. There is no evidence of pain with weight-bearing; no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; and no crepitus. The Veteran's strength in his right knee is 5/5. There is no evidence of muscle atrophy, ankylosis or history of recurrent subluxation or lateral instability, and no current instability after testing. The examiner stated that there are no residuals post total knee joint replacement surgery. 

In November 2020, VA secured a medical opinion regarding the Veteran's right knee condition. The examiner reviewed the Veteran's medical treatment records and stated that the Veteran had ACL reconstruction during service in 1993 and was then able to achieve pre-construction levels of activities. The Veteran was able to play softball and run. After review of the Veteran's x-rays, the examiner noted that the Veteran has moderate to advanced degenerative arthritis of the right knee, with evidence of prior ACL reconstruction. Compared to the 2011 x-ray the examiner stated that, the Veteran 

Has had moderate progression of his joint space narrowing. He has early subchondral sclerosis in the medial tibia. He has got interference screws and evidence of prior ACL reconstruction with tunnels in the femur and tibia. He has moderate patellofemoral joint space narrowing on the Merchant view.

The examiner stated that the Veteran's ACL repair remained stable with no loosening or knee swelling.

In February 2021, the Veteran was afforded a VA examination for his right knee condition. The examiner noted that the Veteran had a status post total right knee replacement. The Veteran reported that his knee continues to be painful on a daily basis. The Veteran reported periodic flare-ups of moderate to severe pain of the right knee about once or twice a month that lasts 5-7 days. As to functional loss, the Veteran reported that he avoids prolonged walks, frequent stair climbing, running and moderate to heavy lifting, pushing and pulling. The Veteran does not have a history of instability or recurrent subluxation of the knees or frequent effusion. 

The examiner noted that the Veteran's limitation of motion of the right knee is limited to 115 degrees flexion and 0 degrees extension for both active and passive range of motion. The Veteran has functional loss for flexion and extension. The examiner noted there was no pain during range of motion testing and no additional limitation following repetitive range of motion testing. The examiner noted that Veteran has pain, fatigability, and lack of endurance which significantly limits the Veteran's functional ability with repeated use over time. 

The examiner estimated the range of motion immediately after repeated use over time and during flare-ups as 110 degrees flexion and 0 degrees extension. Additional factors contributing to the right knee disability include interference with sitting, interference with standing; disturbances of locomotion; and less movement than normal. There is evidence of pain in weight-bearing, non-weight bearing, active and passive motion and limits the Veteran as described above. The examiner stated that the Veteran's weight-bearing limitations were 110 degrees flexion and 0 degrees extension, and non-weight bearing were 115 degrees flexion and 0 degrees extension. 

There is no objective evidence of crepitus, muscle atrophy, or ankylosis. However, there is objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Specifically, "There is mild localized proximal and distal medial collateral tenderness of the right knee, without swelling or assymetry." The Veteran does not have recurrent subluxations, persistent instability, or patellar instability and has not been prescribed any assistive devices.

The examiner noted the Veteran had a total knee joint replacement, and has an intermediate degree of residual weakness, pain, or limitation of motion or weakness. The Veteran occasionally uses a brace. Diagnostic testing was performed and resulted in no degenerative or post-traumatic arthritis. The x-ray revealed, 

There is a right total knee arthroplasty, which is new compared with prior x-ray. No evidence of loosening or periprosthetic fracture. No dislocation. Surgical screws within femur and tibia are partially visualized and consistent with prior x-ray from 12/18/2017. No destructive bony changes. No definite joint effusion.

The examiner provided a retrospective opinion regarding the Veteran's knee condition from January 2017 by reviewing the medical records at that time including the January 2017 VA examination. The examiner estimated the Veteran's right knee range of motion during a flare-up as 100 degrees flexion and 0 degrees extension. The examiner noted that the range of motion estimate can be considered itself to contribute to functional loss. 

Prior to January 9, 2019 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease)

The Board now turns to the issue of entitlement to increased ratings for the Veteran's service-connected status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease) disability prior to January 9, 2019. As a preliminary matter the Board notes that the appeal period of the entire claim is from May 25, 2009, one year prior to the receipt of the claim, through the present. Thus, the Board will first evaluate the claim from May 25, 2009 through January 9, 2019, prior to the Veteran's total knee replacement surgery.

As noted above, the Diagnostic Code for the Veteran's right knee condition, has changed a few times throughout the appeal period. The Veteran was originally awarded service connection for his right knee following a right anterior cruciate ligament reconstruction for anterior cruciate ligament and was awarded a 10 percent rating under Diagnostic Code 5257. In the May 2004 rating decision, the Veteran maintained his 10 percent rating with the diagnostic code unchanged. In the May 2010 rating decision, the Veteran maintained his 10 percent rating, but the rating was changed to Diagnostic Code 5257-5261. The Board notes, that beginning in January 2017, there is evidence of a compensable limitation of motion for extension under Diagnostic Code 5261. 

However, the Board finds that the more appropriate Diagnostic Codes are 5010 and 5257 because the Veteran has had degenerative arthritis and pain throughout the appeal period, in addition to instability. Cf. Butts v. Brown, 5 Vet. App. 532 (1993) (stating that the Board may choose the diagnostic code to apply provided the choice is supported by reasons and bases, as well as the evidence); see also 38 C.F.R. § 4.20. The Board finds that the Veteran is entitled to separate ratings for each of these right knee conditions under Diagnostic Codes 5010 and 5257. There is evidence throughout the entire appeal period that the Veteran has had degenerative arthritis and pain, prior to January 9, 2019.

While the Veteran's rating under Diagnostic Code 5261 became compensable in January 2017, the Veteran would be entitled to a higher rating prior to January 2017 under Diagnostic Codes 5010, and 5257. The Board notes, that assigning a separate rating under Diagnostic Code 5010 and Diagnostic Codes 5260 or 5261 would constitute pyramiding, as these diagnostic codes rate based on limitation of motion, including limitation of motion caused by pain. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62 (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). The Board considered assigning the Veteran's knee condition under Diagnostic Code 5257 and 5261 but the Veteran was not entitled to receive a compensable rating under 5261 until January 2017, where he would be entitled to receive a compensable rating under 5010 for the entire appeal period prior to January 9, 2019.

Further, the rating criteria under Diagnostic Code 5010 specifically directs that degenerative arthritis be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, here, Diagnostic Codes 5260 and 5261 for limitation of flexion and extension of the knee.  See 38 C.F.R. § 4.71a. Thus, the Veteran may only be awarded a 10 percent rating based on either 5010 or 5261, but not both. However, the Veteran may be awarded separate ratings under Diagnostic Codes 5010 and 5257.

The Board considered whether additional or higher ratings could be warranted if the Veteran's service-connected knee disabilities manifested in flexion limited to 45 degrees or less and/or extension limited to 10 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. 

Throughout the period from May 25, 2009 to January 9, 2019, the Veteran's right knee flexion was limited at its most severe, to 100, and the right knee extension was limited at its most severe, to 10 degrees. Such limitations do not warrant additional or higher ratings under Diagnostic Codes 5260 and 5261, than the Veteran would be entitled to under Diagnostic Code 5010 and 5257.

The Board finds that the Veteran is entitled to a separate rating under 5010 and 5257. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 (arthritis with painful limitation of motion) and 5257 (instability).  See VAOPGCPREC 23-97.  Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5010 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98.  A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.71a, Diagnostic Code 5010. See 38 C.F.R. § 4.59.

As to stability under Diagnostic Code 5257, the Board acknowledges that prior to the Veteran's ACL reconstructive surgery in 1993 he had instability in his right knee. The Veteran reported during a December 2009 orthopedic consult that his knee gives way about once a month and there are "possible episodes of catching or locking, though he complains mostly of instability." The Veteran also reported in July 2016 that he is unstable on the stairs. While the Veteran has not been diagnosed with instability in any of his VA examinations during the appeal period prior to January 9, 2019 the Veteran has consistently reported instability throughout this time period, and he was originally awarded service-connection for instability under Diagnostic Code 5257.  

The Board also notes that, objective medical evidence is not required to establish knee instability under Diagnostic Code 5257. As such, objective medical evidence cannot be found categorically more probative than lay evidence with respect to Diagnostic Code 5257. See English, 30 Vet. App. at 352-53. The Board also considered the fact that the Veteran had to care for his spouse that had Alzheimer's and was unable to receive treatment for 6-8 years as a mitigating factor in there not being more medical records substantiating his claim. The Veteran's doctors substantiated this point. The Board finds the Veteran competent and credible in explaining that he has instability in the right knee. In addition, the Veteran had to have a total knee replacement, which supports the seriousness of his right knee condition. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence supports the Veteran's contention that he has instability in his right knee. Thus, the Veteran is entitled to a 10 percent rating, but no higher for the entire appeal period, prior to January 9, 2019. 

Therefore, the Board finds that the Veteran is entitled to a rating of 10 percent for his degenerative arthritis and pain in his right knee, and a separate rating of 10 percent for instability, for the entire appeal period prior to January 9, 2019.

The Board acknowledges the Veteran's representative's contention that the Veteran should receive a separate rating for pain under [Diagnostic code 5010] and flexion under [Diagnostic Code 5260]. See January 2019 IHP. However, the Veteran's most severe limitation of flexion exceeded 60 degrees and is thus noncompensable. Therefore, a higher disability rating in excess of 10 percent is not warranted under Diagnostic Code 5260 for limitation of flexion. 38 C.F.R. § 4.71a. Thus, the Veteran benefits from being rated under Diagnostic Code 5010 and 5257, because he receives a 10 percent rating for each of these ratings. The Board also notes, as discussed previously, that the Veteran may not receive a rating for either Diagnostic Code 5260 or 5261, in addition to Diagnostic Code 5010 due to pyramiding.

The Board acknowledges the Veteran's representative's contention that the Veteran should receive a higher rating for the Veteran's instability. The Board has already addressed this contention by awarding the Veteran a separate rating for degenerative arthritis including pain, and for instability. The Board also notes, that because the Board is awarding the Veteran separate ratings based on the Veteran's contentions that he has instability in the right knee, and there is no objective medical evidence to substantiate the claim, the Board considers the stability to be "slight." 

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

In conclusion, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a separate 10 percent rating for degenerative arthritis and pain in his right knee, and a separate 10 percent rating for his instability of the right knee under Diagnostic Code 5257 for the entire appeal period prior to January 9, 2019. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Entitlement to an increased rating in excess of 30 percent from March 1, 2020 for status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease)

The Board now turns to the issue of entitlement to increased ratings for the Veteran's service-connected status post right total knee replacement (previously rated as anterior cruciate ligament reconstruction with degenerative joint disease) disability from March 1, 2020. 

The Veteran asserts that his right total knee replacement warrants a rating in excess of 30 percent from March 1, 2020. The Veteran's right total knee replacement is rated under Diagnostic Code 5055.

Under Diagnostic Code 5055, 30 percent is warranted when the Veteran shows signs of intermediate degrees of residual weakness, pain or limitation of motion and is rated analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent rating is warranted when the Veteran suffers from chronic residuals consisting of severe painful motion or weakness in the affected extremity. A rating between 30 and 60 percent may be granted based upon the analogous ratings of the aforementioned codes.

The evidence does not overall show that the Veteran suffers from chronic residuals consisting of severe painful motion or weakness in the affected extremity to warrant a 60 percent rating. 

From March 1, 2020 to the present, the Veteran's service-connected right knee disability was rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5055. To warrant a higher rating under Diagnostic Code 5055, the disability would have to manifest in intermediate degrees of residual weakness, pain, or limitation of motion under 38 C.F.R. § 4.71a , Diagnostic Code 5256, 5261, or 5262, or in chronic residuals consisting of severe painful motion or weakness. Specifically, the Veteran's limitation of motion would have to be rated at a higher rating above 30 percent under Diagnostic Code 5256, 5261, or 5262 to receive a higher rating, if he did not have severe painful motion or weakness. 

The evidence of record reflects that, from March 1, 2020 to the present, the Veteran's service-connected right knee disability did not manifest in ankylosis. 

In addition, at its most severe, the disability manifested in right knee flexion limited to 110 degrees and right knee extension limited to 0 degrees. As such, the record shows that, during the period from March 1, 2020 to the present, the service-connected right knee disability did not manifest to an intermediate degree such that a rating in excess of 30 percent was warranted under 38 C.F.R. § 4.71a , Diagnostic Code 5256, 5261, or 5262.

Furthermore, the record does not show that the Veteran's service-connected right knee disability manifested in severe painful motion or weakness since March 1, 2020. During the February 2021 VA examination, the Veteran reported that his knee continues to be painful on a daily basis. The Veteran reported periodic flare-ups of moderate to severe pain of the right knee about once or twice a month that lasts 5-7 days. As to the functional loss, the Veteran reported that he avoids prolonged walks, frequent stair climbing, running and moderate to heavy lifting, pushing and pulling. The Veteran does not have a history of instability or recurrent subluxation of the knees or frequent effusion. 

Although the Veteran did complain of right knee pain, the evidence does not show that such symptoms rose to the level of "severe." Accordingly, the record does not show that a rating in excess of 30 percent was warranted for the service-connected right knee disability during the period from March 1, 2020.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. at 107. Specifically, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's disability under 5257 was unaffected because a review of the evidence of record does not reflect any instability or subluxation associated with the Veteran's right knee disability from March 1, 2020. Further, the Veteran has not endorsed any subjective feelings of instability associated with the service-connected right knee disability. As the evidence of the record does not reflect that the Veteran has recurrent subluxation or lateral instability, Diagnostic Code 5257 does not apply. Under Diagnostic Code 5055, the changes would have limited the Veteran to only 4 months of temporary disability versus a year, but this change would not be favorable, and is not being considered in this appeal. The Board notes that the Veteran's knee surgery also occurred prior to the February 7, 2021 criteria changes.

The Veteran is competent to report right knee symptoms and his reports are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran is not competent to identify the specific level of his service-connected right knee disability according to the appropriate Diagnostic Codes and relevant rating criteria. See 38 C.F.R. § 4.46; Kahana v. Shinseki, 24 Vet. App. 428 (2011). He has not been shown by the evidence of record to have the training, skills, or experience needed to make such a determination. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, these records are more probative than the Veteran's subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

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The preponderance of the evidence is against finding that the Veteran is entitled to a higher rating under Diagnostic Code 5055. Thus, the benefit of the doubt doctrine is not for application. See Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). For the reasons stated above, the Board finds that the previously assigned 30 percent rating is an appropriate rating.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Quist Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.